Solar, Wind Power

Environmental Regulation in the Age of Trump — Knot as Easy as They Thought

There is a lot of speculation surrounding the Trump administration’s intentions toward clean energy and environment policies and programs. Rumors abound of slashing budgets, firing personnel, gagging anyone left standing and ultimately dismantling EPA and federal renewable energy programs at the Department of Energy and elsewhere.

IMHO—the fate of EPA and of various federal climate-related programs may well depend upon the answer to a single question:

How will the Administration deal with the Agency’s 2009 declaration that GHGs threaten the public health and welfare of current and future generations and contribute to greenhouse gas pollution that threatens public health and welfare?

The answer—or rather, the presumed response of the Trump administration—may not be what you think. There is often a great divide between what candidates promise and victors deliver.
 
Trump’s triumphal march down Pennsylvania Avenue and promise to drain the swamp conjures images of Alexander’s entrance into the Phrygian city of Telmissus and cutting the Gordian knot. Reality, however, may paint quite another picture.
 
Opponents of President Obama’s climate action initiatives are quick to point out the Clean Power Plan (CPP) is a creature of executive action and, therefore, within the power of President Trump to deal with as he sees fit.

Although executive orders and memoranda can be rescinded with the stroke of a successor’s pen, it is not nearly as easy to dismiss the legal and scientific precedents upon which the directive was based. Neither, would overturning the endangerment finding come without complication or consequence.

Decades of legal precedents can trump political wishfulness and keep unilateral executive actions within constitutional bounds. The following paragraphs highlight key judicial precepts and procedures likely to confront, influence and possibly confound administration efforts to rescind the CPP and other clean energy and environmental regulations.

Massachusetts v. EPA

EPA’s 2009 endangerment finding followed the decision of the U.S. Supreme Court (SCOTUS) in the case of Massachusetts v EPA. Events leading up to the  2007 decision started late in 1999, when a group of private organizations petitioned the Agency, asking it to exercise its authority under the Clean Air Act (CAA) by regulating carbon emissions from new motor vehicles.

EPA denied the petition. Its refusal was based upon two core conclusions :

  • The Act did not authorize it to issue mandatory regulations addressing global climate change; and
  • Even if the Agency has the authority, it would be unwise to issue any regulation because the link between greenhouse gases and increased  global temperatures cannot be unequivocally established.

The Agency cited other reason as well. The ruling would: be a piece-meal approach to climate change; conflict with more comprehensive efforts of the President; and, interfere with non-regulatory options, like voluntary action by the private sector. SCOTUS disagreed, believing EPA underestimated its CAA authority and inadequately accounted for the magnitude of the problem, in relation to the ambiguity of the science.

Justice John Paul Stevens, writing for the majority, summed the situation as follows:

Calling global warming ‘the most pressing environmental challenge of our time,’ a group of States, local governments, and private organizations, alleged…that the Environmental Protection Agency (EPA)…abdicated its responsibility…to regulate the emissions of four greenhouse gases, including carbon dioxide.

EPA considered the links—between human activity, the presence of greenhouse gases (GHGs) and climate change—more casual than causal. It based its refusal to regulate primarily on the National Research Council’s (NRC) conclusion that:

…there is considerable uncertainty in current understanding of how the climate system varies naturally and reacts to emissions of [GHGs]…. 

Justice Scalia accepted the Agency’s judgement, believing it appropriate and well-grounded on the scientific knowledge of the day. Others on the bench, however, agreed with the plaintiffs’ position that the profundity of the problem outweighed the uncertainty of the evidence.
 
In a narrow 5-4 decision, the majority declared:

EPA has offered no reasoned explanation for its refusal to decide whether greenhouse gases cause or contribute to climate change.                
Its action was therefore “arbitrary, capricious, … or otherwise not in accordance with law.” 

The majority opinion ended by stating:

We need not and do not react the question of whether on remand EPA must make an endangerment finding, or whether policy concerns can inform EPA’s actions in the event that it makes such a finding.

We hold only that EPA must ground its reasons for action or inaction…

The case was shipped back to the lower court for further proceedings, consistent with the majority’s opinion. 

EPA read the decision as a directive to re-review the science surrounding climate change, with focus on the causal relationship between GHG emissions and global warming. Since SCOTUS had shown itself unwilling to accept the singular findings of the NRC, EPA expanded its inquiry. The Agency considered  numerous scientific studies—including IPCC’s assessment and by incorporation the 18,000 peer-reviewed papers in support of the its climate conclusions.
 
Upon reconsideration of the scientific data, the Agency found sufficient evidence to conclude the public’s health and welfare were at-risk from climate change; and, GHG emissions from motor vehicles were a contributing factor.
 
The endangerment finding and other of the proposed regulations issued following the Massachusetts decision, e.g., Cross-State Air Pollution Rule   (CSAPR), were quickly challenged by coalitions of state attorneys general and allied industry organizations. (EESI timeline)
 
The U.S. District Court of Appeals for the District of Columbia, in a series of rulings, dismissed these challenges to EPA’s authority. It further denied plaintiffs’ claims that the endangerment finding was based on flawed or inconclusive scientific evidence.
 
In the wake of the Massachusetts decision and dismissal of the subsequent challenges, President Obama released his Climate Action Plan, directing EPA to move expeditiously to regulate carbon emissions from both new and existing power plants. 
 
Stare Decisis

Executive directives may have the weight of law, they are not superior to it. Can Trump dismiss, declare illegal or delineate limits around Obama’s clean power memorandum? Indeed, he can.
 
What he cannot do is to order federal courts to ignore decades of decisions and precedents. American justice is a continuum largely because it adheres to the doctrine of stare decisis—to stand by things decided.
 
The doctrine is multi-directional. Horizontal stare decisis refers to a court’s adherence to its own precedents; it is vertical when it applies those that are established by a higher court, e.g. SCOTUS. 
 
The doctrine is neither flawless nor immutable. There are times when a court will decide the precedential basis of prior decisions is unworkable or so unjust as to warrant being abruptly overturned:

…the Constitution precludes the Court from exercising its overruling power as a matter of unbridled discretion…[and] constrains a Court’s power … as it constrains every other exercise  of governmental power.

To put the strength of the stare decisis doctrine into some perspective, consider Roe v. Wade. The 1973 landmark abortion rights decision by SCOTUS has faced political and legal challenges since before the ink was even dry. Largely due to stare decisis, the decision still stands.
 
Perforce the combination of several factors, EPA’s authority to regulate GHG emissions is currently without question. These factors include:

  • Case law supporting the obligation of the federal government to protect the health and welfare of its citizens;
  • EPA’s 2009 endangerment finding as supported by judicial opinion recognizing the validity of preponderance of scientific evidence on which the finding was made, notwithstanding any reasonable uncertainty; and,
  • The established doctrine of stare decisis, the tradition of U.S. courts to maintain continuity amongst judicial decisions.

The Trump administration is facing limited options to effectuate its goal of rescinding the Clean Power Plan and reducing federal regulatory responsibility for the protection of citizens from environmentally caused harms.
 
In the next installment, I will identify and discuss what those options might be and highlight some of the pros and cons of each. 

This article was originally published by CivilNotion.com and was republished with permission.


Read more in this series:

Accountable to Who(m) Exactly? Environmental and Energy Rulemaking in the Age of Trump

This Week in Washington: The President and Congress Set to Move on Environmental Regulation

For Better or Worse: Environmental and Energy Rulemaking in the Age of Trump